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Protecting rights and facilitating stable relationships among federal agencies, labor organizations, and employees while advancing an effective and efficient government through the administration of the Federal Service Labor-Management Relations Statute.

38 FLRA No. 1
FEDERAL LABOR RELATIONS AUTHORITY
WASHINGTON, D.C.
U.S. DEPARTMENT OF THE NAVY
PUGET SOUND NAVAL SHIPYARD
BREMERTON, WASHINGTON
(Respondent)
and
INTERNATIONAL FEDERATION OF PROFESSIONAL
AND TECHNICAL ENGINEERS
LOCAL 12
AFL-CIO
(Charging Party)
9-CA-90215
DECISION AND ORDER
November 1, 1990
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This unfair labor practice case is before the Authority in accordance
with section 2429.1(a) of the Authority's Rules and Regulations, based
on a stipulation of facts by the parties, who have agreed that no
material issue of fact exists. The General Counsel and the Respondent
filed briefs with the Authority.
The complaint alleges that the Respondent failed to comply with
section 7114(b)(4) of the Federal Service Labor-Management
Relations Statute (the Statute) in violation of section
7116(a)(1), (5) and (8) of the Statute by refusing to furnish
certain information requested by the Union.
For the following reasons, we find that the Respondent violated
section 7116(a)(1), (5) and (8) of the Statute.
II. Facts
The Union is the exclusive representative of a professional
and non-professional unit of certain technical employees of the
Respondent. By memorandum dated December 12, 1988, the Respondent's
Industrial Relations Office forwarded to the Union a proposed
instruction covering injury/illness compensation, NAVSHIPYDPUGET
Instruction 12810.2B. By letter dated January 4, 1989, the
Union requested to bargain on the proposed instruction and requested
copies of Chapter 810 of the Federal Personnel Manual (FPM) and
the Federal Employees' Compensation Act (FECA). Both documents
were specifically referenced in the proposed instruction. The
Union requested the information in order to fully understand the
proposed instruction and/or to prepare bargaining proposals.
By letter dated January 6, 1989, the Respondent's head of employee
management relations denied the Union's request for information.
Since that date the Respondent has refused to provide the
requested information.
The Respondent admitted that: (1) it maintains Chapter 810 of
the FPM and the FECA in the regular course of business and
they are reasonably available; (2) Chapter 810 of the FPM,
but not the FECA, is necessary for full and proper discussion,
understanding and negotiation of subjects within the scope of
collective bargaining; and (3) Chapter 810 of the FPM and the
FECA do not constitute guidance, advice, counsel or training
provided to management officials or supervisors relating to
collective bargaining.
Notwithstanding the above, the Respondent contended that it
had no duty to provide the Union with the requested information
as it is public information which the Union could obtain from
other sources. The Respondent had advised the Union of its
position regarding such public documents, including a portion
of the FPM, in a letter from its labor relations specialist
on December 8, 1988. In that letter, which was in response to
a prior Union request for information, the Respondent advised
the Union that the FPM was available for sale from the
Superintendent of Documents and may be available in some of
the larger public libraries. The Respondent also stated that
the Union could review the FPM in its labor relations office,
but that it would not make the Union a copy.
III. Positions of the Parties
A. General Counsel
The General Counsel asserts that it is well settled that section
7114(b)(4) of the Statute obligates an agency to provide a union
with requested information that is relevant and necessary to the
performance of its representational functions, including
information needed in preparation for negotiations, if the
information is regularly maintained by the agency in the regular
course of business. Here, the General Counsel argues, the
Respondent agreed that the requested information was relevant and
necessary to the Union to prepare for negotiations. Moreover,
the Respondent conceded that the information was regularly
maintained in the regular course of business, was reasonably
available and was not guidance or training related to collective
bargaining. Accordingly, the General Counsel contends the
Respondent's continuing failure and refusal to provide the
requested information is violative of the Statute.
The General Counsel contends that the Respondent's sole basis for
refusing to provide the requested information--that the documents,
while maintained by it, are public documents which the Union could
obtain through public sources--should be rejected. The General
Counsel argues that the Statute requires an agency to provide
documents which it regularly maintains and which are otherwise
needed by the union for collective bargaining purposes. It does
not require a union to seek such relevant and necessary information
from alternative sources. In support of its position, the General
Counsel cites to Authority decisions in U.S. Army Corps of Engineers,
Kansas City District, Kansas City Missouri, 22 FLRA 667 (1986) and
U.S. Army Reserve Components Personnel and Administrative Center,
St. Louis, Missouri, 26 FLRA 19 (1987).
B. Respondent
The Respondent contends that the material requested is not "data"
within the meaning of the Statute. The Respondent argues that
Congress did not intend for the Government to provide labor
organizations with subscription reference material of general
applicability such as the FPM, or a copy of a law, such as the FECA,
which is not produced or compiled by the employer in the regular
course of business and which is readily available from primary
sources other than the agency itself. The Respondent further
states that the Union was advised in its December 8, 1988 letter
that the Union could review similar requested documents in the
labor relations office, but that it would not be provided copies.
The Respondent asserts that the Union should either: (1) purchase
the requested documents in the same manner as the Agency;
(2) review the documents in the personnel office; or
(3) attempt to obtain through negotiations that which the law
does not mandate. Respondent's Brief at 2.
Accordingly, the Respondent requests that the complaint in this
matter be dismissed.
IV. Analysis and Conclusions
We find that the Respondent violated section 7116(a)(1), (5) and (8)
of the Statute by refusing to provide the Union with information to
which it was entitled under section 7114(b)(4) of the Statute.
Section 7114(b)(4) of the Statute requires an agency to furnish a
union, upon request, with data that: (1) is normally maintained by
the agency in the regular course of business; (2) is reasonably
available and necessary for discussion, understanding, and negotiation
of subjects within the scope of collective bargaining; and (3) does not
constitute guidance, advice, counsel, or training provided for management
officials or supervisors, relating to collective bargaining.
The Respondent stipulated that: (1) it maintains Chapter 810 of the
FPM and the FECA in the regular course of business and they are
reasonably available; (2) Chapter 810 of the FPM, but not the FECA,
is necessary for full and proper discussion, understanding and negotiation
of subjects within the scope of collective bargaining; and (3) Chapter 810
of the FPM and the FECA do not constitute guidance, advice, counsel or
training provided to management officials or supervisors relating to
collective bargaining.
We find that FECA was necessary to the Union in order for it to fully
and properly discuss, understand and negotiate over management's proposed
instruction, NAVSHIPYDPUGET Instruction 12810.2B. In this regard, FECA
was specifically referenced in the proposed instruction as the controlling
law in the areas covered by the proposed instruction. The Union requested
the information specifically to prepare for negotiations concerning the
proposed management instruction. Therefore, we find that such information
was necessary in the performance of the Union's representational duties.
Further, the Authority has held that there is nothing in the language of
section 7114(b) or its legislative history that indicates that Congress
intended a union's right to information under the provision to be
dependent on whether the information is reasonably available from an
alternative source. U.S. Army Reserve Components Personnel and
Administrative Center, St. Louis, Missouri, 26 FLRA 19, 27 (1987). In
addition, section 7114(b)(4) requires an agency to "furnish" information
to the exclusive representative of its employees; merely allowing a union
representative to look at information the union is entitled to for
representational purposes does not discharge the agency's duty. Veterans
Administration and Veterans Administration Regional Office, Buffalo, New
York, 28 FLRA 260, 266 (1987). The Respondent does not contend, and it
does not appear, that providing the information would be an undue burden
so as to compel the conclusion that the information is not reasonably
available. Compare Department of Health and Human Services, Social
Security Administration, 36 FLRA 943 (1990) (the respondent contended that
the data requested was not reasonably available because of the burdensome
nature of the request; Authority concluded that the data requested was
reasonably available).
Accordingly, we find that the information requested by the Union is data
within the meaning of section 7114(b)(4) of the Statute and that the
Respondent was obligated to furnish the Union with a copy of Chapter 810
of the FPM and FECA.
V. Order
Pursuant to section 2423.29 of the Authority's Rules and Regulations and
section 7118 of the Statute, the Department of the Navy, Puget Sound Naval
Shipyard, Bremerton, Washington, shall:
1. Cease and desist from:
(a) Refusing to furnish, upon request of the International Federation of
Professional and Technical Engineers, Local 12, AFL-CIO, the exclusive
representative of certain of its employees, Chapter 810 of the Federal
Personnel Manual and the Federal Employees Compensation Act.
(b) In any like or related manner, interfering with, restraining, or
coercing its employees in the exercise of rights assured them by
the Statute.
2. Take the following affirmative action in order to effectuate the purposes
and policies of the Statute:
(a) Furnish the International Federation of Professional and Technical
Engineers, Local 12, AFL-CIO, the exclusive representative of certain of
its employees, Chapter 810 of the Federal Personnel Manual and the Federal
Employees Compensation Act.
(b) Post at its facilities at Puget Sound Naval Shipyard, copies of the
attached Notice on forms to be furnished by the Federal Labor Relations
Authority. Upon receipt of such forms, they shall be signed by the
Commanding Officer, Puget Sound Naval Shipyard, Bremerton, Washington, and
shall be posted and maintained for 60 consecutive days thereafter, in
conspicuous places, including all bulletin boards and other places where
notices to employees are customarily posted. Reasonable steps shall be
taken to ensure that such notices are not altered, defaced, or covered by
any other material.
(c) Pursuant to section 2423.30 of the Authority's Rules and Regulations,
notify the Regional Director, Region IX, Federal Labor Relations Authority,
in writing, within 30 days from the date of this Order as to what steps have
been taken to comply.
NOTICE TO ALL EMPLOYEES
AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY
AND TO EFFECTUATE THE POLICIES OF THE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE
WE NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT refuse to furnish, upon request of the International Federation
of Professional and Technical Engineers, Local 12, AFL-CIO, the exclusive
representative of certain of our employees, Chapter 810 of the Federal
Personnel Manual and the Federal Employees Compensation Act.
WE WILL NOT, in any like or related manner, interfere with, restrain,
or coerce our employees in the exercise of rights assured them by the Federal
Service Labor-Management Relations Statute.
WE WILL furnish the International Federation of Professional and Technical
Engineers, Local 12, AFL-CIO, the exclusive representative of certain of our
employees, Chapter 810 of the Federal Personnel Manual and the Federal
Employees Compensation Act.
(Activity)
Dated: By:
(Signature) (Title)
This Notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
If employees have any questions concerning this Notice or compliance with its
provisions, they may communicate directly with the Regional Director, Region IX,
Federal Labor Relations Authority, whose address is: 901 Market Street, Suite
220, San Francisco, California 94103, and whose telephone number is: (415) 744-4000.